Matter of Gospel Faith Mission Intl., Inc. v Weiss

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Matter of Gospel Faith Mission Intl., Inc. v Weiss 2012 NY Slip Op 30809(U) March 23, 2012 Supreme Court, Nassau County Docket Number: 010774/11 Judge: Robert A. Bruno Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ----------------------- -------------- ------- -- -- ------------------------ ---- ----- --- -- -------- -- [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. ROBERT A. BRUNO, J. ------------------------ )C In the Matter of The Application of GOSPEL FAITH MISSION INTERNATIONAL, INC., Petitioner, TRIAL/IAS PART 20 Index No. : 010774/11 Motion Date: 01104/12 Motion Sequence: 001 for Judgment Pursuant to Article 78, Civil Practice Law and Rules, -againstDAVID P. WEISS, Chairman, CHRISTIAN BROWNE, FRANK A. MISTERO, JOHN F. RAGANO, KATURIA D' AMATO, GERALD G. DECISION & ORDER WRIGHT, and KIMBERLY A. PERRY, constituting the Board of Appeals of the Town of Hempstead, Respondents.. ------ ------------------ )C Papers Numbered Sequence #001 Notice of Petition , Affdavit , Affirmation & E ibits ......................................... Petitioner s Memorandum of Law.................... ..,........... ................ ...................... 2 Respondents Memorandum of Law ...................................................................... Verified Answer and Retur ................................................................................. 4 Upon the foregoing papers , it is ordered that this motion is decided as follows: Petitioner seeks an Order pursuant to Article 78 of the CPLR anullng and decision of the Respondents which denied the applications e)Cception in order to utilze reversing the special an e)Cisting building located at 20 Biltmore Avenue , Elmont , New of Petitioner (a) for a York as a church , (b) for a waiver of off-street parking requirements , ( c) for a variance for insuffcient parking stall size and back-up space and (d) for a special e)Cception to park in a Residence " B" District. Respondent opposes said application. CPLR 78 by the petitioner Gospel Faith Mission International , Inc. for a judgment setting aside and anullng a determination of the respondent Board of Zoning Appeals of the Town of Hempstead , dated June 15 , 2011 , which denied the Petition pursuant to Aricle Page 1 ," ," ), [* 2] Gospel Faith v Weiss Inde)C No. : 010774/11 petitioner s application for inter alia: (1) a special e)Cception permit to maintain a house of worship; (2) a waiver of off-street parking requirements; (3) a variance for insufficient parking stall size and back-up space; and (4) a special e)Cception to park in a " Residence B" zone. The petitioner Gospel Faith Mission International ("the petitioner ) is a domestic religious institution organized under Aricle 1 0 of the Religious Corporations Law (Pet. 2). The petitioner curently owns a 78 by 80 foot long propert at 20 Biltmore Road , Elmont , New 4). The subject propert is York in the Town of Hempstead' s Residence " B" zone (Pet. improved with a two-story, mason and wood building to the south and a single- family residence in the northerly portion of the parcel (Pet. 5). The petitioner originally acquired the southerly portion of the property (i. Lots 20- 22), in 2004 , and began operating a Pentecostal church thereon in 2005 (Pet. 6). In 2006 , the petitioner made a prior application for a waiver of certain off-street parking requirements and to convert (the building) to a church" - which application was denied by the respondent Zoning Board in December of 1986 (" the Board" )(Retur , E)Ch. 86" ). Thereafter in 2009 , the petitioner acquired the norterly portion of the curent property (Lots 12- 19), on which the single- family . home referenced above is curently located (Pet. see Februar, 2011 Hearing Transcript at 115- 117 (" In October of 2009 , the petitioner made a second application to the Town of Hempstead Building Deparment for certain approvals necessar to maintain a house of worship in the subject residential zone (Return E)Ch. The Building deparment denied the application , after which the petitioner applied to the respondent Board for inter alia: (1) a " special e)Cception " permit , authorizing the maintenance of a House of Worship in a residential zone (Town Code 99 402(A); and; (2) certain variances and/or waivers from applicable , off-street parking requirements , including parking stall size and back-up " area provisions of the Town Code (Pet. 10). Among other things , and in order to create additional off-street parking, the petitioner advised the Board that it intended to demolish the single- family dwelling situated to the north of the parcel and construct a seven-stall parking lot there (Pet. 8; H- 117). Although the petitioner agreed to modify its plans so that the stalls would be lawfl in size , the so-called " back-up " or maneuvering aisle for each space would be at best , only 21 feet - less than the required 24 feet; while the width of the curb cut affording access to the proposed lot would measure some 14 feet whereas the Code-mandated width is 24 feet (Board Decision (" Dec 5; H- 119 , 133 , 138). According to the petitioner , (appro)Cimately 75 to 80 individuals in its congregation curently includes some 29 familes total). The Church operates a Sunday school program from 10:00; a. m. to 10:45 a. m. conducts bible study classes on Wednesdays from 7:30 p. m. to 9:00 p. , involving some 20 to 30 attendees , while worship services attended by some 70 Page 2 .. [* 3] Gospel Faith v Weiss Inde)C No. : 010774/11 m. to 1 :00 p. m (Pet. ~~ 7- 8; H- 122). According to the petitioner a m imum of some 20 cars , including two , 16-person vans would be used by congregants on Sundays , the Church' s busiest day (Pet. ~~ 8- 9; H- 122 , 128- 130). The petitioner agreed at the hearing that the occupancy of the propert would be limited to a m imum of 90 persons, which - under the Code - would therefore require about 30 , off-street parking spaces (Dec. , ~~ 6- 7; H- persons , are held from 11 :00 a. 120- 123 , 128). inter alia that he observed the Church congregants assemble and depar on thee successful Sundays; that there were no negative impacts in terms of inconvenience , ingress , egress or parking; that there was ample on-street parking available in the immediate vicinity; and that the proposed permit and/or variances requested would not , if granted , result in traffc congestion or undue , street parking issues (H- 138- 141 , 142). According to the e)Cpert , the use of two , si)Cteen- person vans (to be acquired at a later date) would reduce the Sunday, on-street parking requirements to only three At the hearing, the petitioner produced a traffic e)Cpert vehicle spots, thereby posing no traffc who testified or congestion issues - even during the Church' s peak usage periods (H- 128- 129 , 139- 140). By Notice of Decision application in all dated June 16 , 2011 , the Board unanimously respects. Thereafter , commenced the within proceeding to denied the by verified petition dated July, 2011 , the petitioner sett aside and anul the Board' s determination. In September, 2011 , the Board issued a formal decision with findings of fact denying the application. The Board noted that Houses of Worship enjoy a preferred status under both Federal (see also Town Code 9 402 (D), (ED, but that "the proposed use must be denied because of its lack of parking " (Dec. , ~~ 8- 9). and New York Law Among other things , the Board reasoned that the petitioner s passenger van calculations and the related , on-street parking estimates , lacked credibilty since the petitioner was inter alia speculatively assuming that each congregant utilzing the van would also be a separate driver. The Board also made a finding that since the parking lot curb cut lot was only 14 feet (ten feet short of the required width), this non conformity - taen together with the limited , back-up space (21 feet , where 24 is mandated) - would greatly increase "the probabilty of accidents and thereby negatively impact upon , and be substantially dangerous to , the surounding area as well as to the "public s health, safety and welfare " (Dec. , ~~ 12- 13). According to the Board these negative impacts allegedly could not " be substantially mitigated by (the) imposition of appropriate conditions * * *" (Dec. 13)(see Town Code 9 402 (D)(I)-(5), (ED. As to the parking and other variances , the Board found that allowing the construction of the proposed parking lot (which would entail demolition of the e)Cisting, single family home), would be inconsistent with the surounding residential area , since the construction of the lot would generate some 3120 square feet of pavement on a 6240 square- foot lot , which parking lot would abut another , single- family home and therefore be " completely out of character" with the residential natue of the subject community. Page 3 [* 4] Gospel Faith v Weiss Inde)C No. : 010774/11 The matter is now before the Cour for review and resolution of the petitioner s claims. The petition should be granted to the e)Ctent indicated below. Unlike a use variance , a special e)Cception involves a use permitted by the zoning ordinance and is "tantamount to a legislative finding " that the use is in harony with , and will not adversely affect the neighborhood" Board of Appeals (Matter of North Shore Steak House v. Board of see, Retail Property Trust of Inc. Vil. of Thomaston 30 NY2d 238 , 243- 244 (1972) Twin County Recycling Corp. Zoning Appeals of Town of Hempstead 98 NY2d 190 , 196 (2002); v. Vilage of Spring Val. Matter of Lee Realty Co. v. Yevoli 90 NY2d 1000 , 1001- 1002 (1997); Wright 73 AD3d 1043 , 1044- 1045). Matter of Capriola 61 NY2d 892 , 893- 894 (1984); Moreover , a special e)Cception permit generally requires a "much lighter" burden of proof than (Franklin Square Donut System, LLC v. Wright 63 AD3d 927 929). that applicable to a variance With respect to religious uses , it is " settled that " (r)eligious structures enjoy a constitutionally protected status which severely curails the permissible e)Ctent of governental (Matter of Westchester Reform Temple regulation in the name of the police powers * * *" v. Planning Bd. 1 NY2d 508 Brown 22 NY2d 488 , 496 (1968); Matter of Diocese of Rochester v. Zoning Bd. of Appeals of Town of Moreau 5 NY3d (1956) see , Pine Knolls Allance Church Jewish v. Bagnardi 68 NY2d 583 , 593- 594 (1986); 407 , 412- 413 (2005); Cornell University Incorporated Vil. of Roslyn Harbor 38 NY2d 283 Reconstructionist Synagogue of N Shore 288- 289 (1975D. Because of the inherently beneficial nature of churches and schools to the such institutions from a residential district serves no end that is community (Cornell v. Bagnardi 68 NY2d 583 , 593- 594 (1986); see also, Pine Knolls Allance Church University Zoning Bd. of Appeals of Town of Moreau, 5 NY3d 407 , 412- 413 (2005); Jewish Reconstructionist Synagogue of N Shore Incorporated Vil. of Roslyn Harbor, supra; Matter of Westchester Reform Temple Brown , supra). Accordingly, " considerations which may wholly justify the e)Cclusion of commercial structures from residential areas are inadequate to the task when religious structures are involved" ( Matter of Westchester Reform Temple Brown , supra 22 NY2d at 496). public * * * the total e)Cclusion of reasonably related to the morals , health , welfare and safety of the Upon considering a special permit application involving a religious institution, zoning offcials must "review the effect of the proposed e)Cpansion on the public s health , safety, welfare or morals , concerns grounded in the e)Cercise of police power with primar consideration given to the over-all impact on the public welfare (Pine Knolls Allance Church Appeals of Town of Moreau, supra 5 NY3d at 512- 513; Cornell University v. Zoning Bd. of Bagnardi , supra Trustees of Union Coll. in Town of Schenectady in State of NY. at 596; Members of Schenectady City Council , supra 91 NY2d at 166). In conformity with this analytical approach (a) local zoning board is required to ' suggest measures to accommodate the proposed religious use while mitigating the adverse effects on the surounding community to the greatest e)Ctent possible (Capriola Wright , supra 73 AD3d 1043 , 1045; Matter of Genesis Assembly of God Davies 208 AD2d 627 , 628 see also , Jewish Reconstructionist Synagogue of N Shore v. Page 4 [* 5] Gospel Faith v Weiss Inde)C No. : 010774/11 Incorporated Vil. of Roslyn Harbor, supra 38 NY2d at 288- 289; Matter of Westchester Reform Temple Brown, supra 22 NY2d 488 , 494- 495 (1968); St. Thomas Malankara Orthodox Church, Inc. v. Board of Appeals, Town of Hempstead 23 AD3d 666 , 667; Harrison Orthodox Weiss Misc.3d. Minyan, Inc. v. Town Bd. of Harrison 159 AD2d 572 573; Rasheed Inde)C No. , 1729- 10 (Supreme Cour, Nassau County Dec. 23 , 2010D. Nevertheless, where an irreconcilable conflct e)Cists between the right to erect a religious structure and the potential hazards of traffic or diminution in value , the latter must yield to the former (Jewish Reconstructionist Synagogue of N Shore Incorporated Vil. of Roslyn Harbor, supra 38 NY2d at 288), unless it is " convincingly shown " that an application "will have a direct and immediate (Matter of Westchester adverse effect upon the health , safety or welfare of the community" v. Bagnardi Brown, supra 22 NY2d 488 , 494- 495 see, Cornell University Reform Temple v. Zoning Bd. of Appeals of Town of Babylon 220 AD2d 740 supra; Apostolic Holiness Church 743). With these principles in mind , the Court agrees e)Ccluded the petitioner from lawflly maintaining Code 9 that the Board has impermissibly (see, it religious use in the subject zone 402(ED. It bears noting that Justice Winslow of this Cour recently determination by the same Board which relied on nonconforming, back-up space in a parking Weiss , supra). (Rasheed permit and/or related variances At bar , the Board' s an analogous lot waranted that the denial theory, inter alia Town set aside a denial of religious use The same result is supported here. decision initially declares that the application would be denied e)Cclusively based on " its lack of parking " (Dec. , ~ 8). Subsequent portions of the decision thereafter conclude that the proposed use would have an adverse impact and " endanger the public s health safety and welfare " (Dec. , ~ 13). The principal rationale offered in support of this finding, is the theory that the absence of adequate back-up space (short by some 3 feet) - in conjunction with the 10- foot non-conforming curb cut - could cause accidents and/or increase their probabilty when vehicles leave and enter the proposed lot (Dec. , ~~ 12- 14). While traffc safety issues are legitimate concerns (e. , Cornell University v. Bagnardi supra at 595; Rasheed Weiss, supra), there is no evidence in the record supporting a finding that the curb cut and/or the seven-stall proposed lot wil result in conditions materially impacting upon the public safety and welfare. Specifically, there was no testimony adduced depicting the prevailng traffc conditions on Biltmore Avenue so as to support a non speculative inference that the proposed parking lot configuration created a significant traffic risk to the public safety. Rather , the Board' s conclusion in this respect is conclusory and unsupported by empirically derived evidence in the record (e. , Matter ofG & P Investing Co. Foley, 61 AD3d 684 , 685; v. Goldsmith Bishop, 264 AD2d 775 , 776; Matter of Framike Realty Corp. Hinck 220 AD2d 501 502 see also , Matter of Oyster Bay Dev. Corp. Town Bd. of Town of Oyster Bay, 88 AD2d 978). Notably, " ( c )onclusory findings of fact are insufficient to support a determination by a City of White Plains Zoning Bd. of Appeals 87 AD3d 1135 , 1137)(internal citations and quotes omittedD. zoning board of appeals * * *" (Matter of Cacsire Page 5 [* 6] Gospel Faith v Weiss Inde)C No. : 010774/11 Nor does the Board' s decision make any findings that the proposed religious use would impact street parking in a manner materially harful to the public welfare , or for that matter that there would be any shortage of on-street parking spaces if the use were to be permitted. This is so despite the fact that the Church has apparently been fuctioning at the present location now since 2005 while the Town has quietly acquiesced to same since 2006 when the Church first applied for a waiver of off-street parking. Similarly, there was no evidence in the record that since the Church began operating in 2005 parking has been negatively impacted or there has been an adverse, impact and danger to the public s health or safety. Moreover , at the hearing, the petitioner s e)Cpert testified that he observed the Church congregants assemble and depar on three successful Sundays and that there were no negative impacts in terms of inconvenience or parking (H- 138- 141 , 142). There was no probative , opposing e)Cpert evidence presented at the hearing (see generally, Matter of Lerner Town Bd. of Town of Oyster Bay, 244 AD2d 336 337; Matter ofC A Carbone Holbrook 188 AD2d 599 , 600 cJ, Matter of Oyster Bay Dev. Corp. Town Bd. of Town of Oyster Bay, supra 88 AD2d 978). In any event , and assuming that the evidence did support some sort of pro)Cimately ensuing negative impact , it does not establish an adverse affect at a level of intensity necessar to support the outright e)Cclusion of a religious institution from the subject zone (Jewish Reconstructionist Synagogue of N Shore Incorporated Vil. of Roslyn Harbor, supra 38 NY2d at 288- 289; Matter of Westchester Reform Temple Brown, supra; Rasheed Weiss, supra); namely, evidence which " convincingly shows that an application " wil have a direct and immediate adverse effect upon the health safety or welfare of the community" (Matter of Westchester Reform Temple Brown, supra , 22 NY2d 488 , 494- 495). Further , and even apar from the foregoing, the record does not support the conclusion that the Board made any attempts to discharge its affirmative duty to suggest "measures to accommodate the proposed religious use while mitigating the adverse effects on the surounding community to the greatest e)Ctent possible (Capriola Wright, supra 73 AD3d 1043 , 1045; Matter of St. Thomas Malankara Orthodox Church, Inc., Long Is. Board of Appeals, Town of Hempstead, supra 23 AD3d 666 , 667 see , Rasheed Weiss , supra). It bears noting that at one point , the petitioner s counsel offered to work with the Board by possibly widening the curb cut so as to minimize its concerns about access to the proposed lot (H- 170- 171). evidence in the record , however , that the Board ever weighed this offer - or that There is no it made any aimed at minimizing the alleged negative impacts it (see Wright, supra 73 AD3d at Weiss supra at 3- 4). Rather , the Board' s concludes with a quotation from a Town Code provision which , in peremptory fashion concludes among other things , that the proposed religious use allegedly could not " be substantially mitigated by (the) imposition of appropriate conditions other affrmative or concrete suggestions claims to have discerned , Capriola 1046; Rasheed (Dec. , ~ 13)(Town Code 9 402(E)(3D. Lastly, as to area variances and other approvals , the Board' s findings do not establish that it properly weighed all the relevant factors prescribed by Town Law 9 267Zoning Bd. of Appeals of Town of Grand Island, 81 AD3d 1455 , 1456; b(3)(b) (Nye Matter of Lessings, Inc. Page 6 [* 7] Gospel Faith v Weiss Inde)C No. : 010774/11 Scheyer 16 AD3d 418 , 419), and/or that it actually balanced the needs and rights of involved religious use as against the concerns of the surounding residents (see generally, Cornell University v. Bagnardi , supra 68 NY2d at 589 , 597; Rasheed Weiss, supra). The Cour has considered the Board' s remaining contentions and concludes that they are lacking in merit. Accordingly it is ORDERED that the decision of the respondent Board of Zoning Appeals of the Town of Hempstead dated , June 15 2011 , is hereby anulled and the matter is remitted to the Board with the direction to grant the requested special e)Cception permit and/or related approvals upon such reasonable conditions as will permit the requested religious use , while mitigating any detrimental or adverse effects upon the surrounding community. All matters not decided herein are DENIED. The foregoing constitutes the decision and order of the Court. 2012 Mineola, New York Dated: March 23 EN T E R: ENTERED MAR 27 8AU 2012 COUNTY COTY CLERK' S OFFICE F:\DECISIONS 20 I 2\GOSPEL FAITH MISSION v DA V\ P WEISS et aJ - 1- wpd Page 7

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